Digital era confounds the courts

Courts have long struggled to deal with key questions at the intersection of individual privacy and ever-advancing technology with little guidance from the Constitution or from prior cases – now judges and experts are hoping that’s about to change.

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The sense of urgency from the bench was shown recently when the First Circuit Court of Appeals declined to rehear a key privacy case and Chief Judge Sandra Lynch took the unusual step of issuing a statement calling on the Supreme Court to get involved: “Only the Supreme Court can finally resolve these issues, and I hope it will.”

Starting next week, the nation’s top court is set to consider whether to take up three key related cases, including the one Lynch encouraged them to take. Here are the big tech issues that could finally get decided:

Cigarette anyone?

Is searching a cellphone like looking in a pack of smokes? That’s the question that some courts are facing, relying on a 40-year-old case for precedent that experts say has been overtaken by modern technology.

Lower courts have been split on the authority of police to search your technology. Currently, court rulings have required warrants to search a cellphone in six states, while they are not required in 20 other states, according to a map put together by Forbes and the Electronic Frontier Foundation.

One of the reasons the courts are divided, experts say, is that an important case on the subject was decided in 1973 and involved drugs found in a pack of cigarettes.

“The question becomes, when the Supreme Court was talking about searching a container, it was talking about a cigarette pack. With the amount of information a cellphone can store, is that different from a cigarette pack?” said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation.

And the questions only get tougher from there.

“Let’s say,” Fakhoury continued, “that the court says police can search the cellphone incident to an arrest: How far does that extend? …Massachusetts says it extends to a call log. Well what about an app? What if you have Dropbox? Does it extend to stuff stored only on the phone? Does it extend to the cloud?”

One of the cases the Supreme Court will decide soon whether to hear, U.S. v. Cotterman, deals with the border search of a man with a prior sex offense in which child pornography was found on his laptop. While officers are allowed to search individuals and their belongings at the border without a warrant, the suspect challenged whether that extends to files on devices they carry with them.

“The present case illustrates this unique aspect of electronic data. … It is as if a search of a person’s suitcase could reveal not only what the bag contained on the current trip, but everything it had ever carried,” wrote 9th Circuit Justice M. Margaret McKeown, who authored the opinion in Cotterman. “With the ubiquity of cloud computing, the government’s reach into private data becomes even more problematic.”

On Dec. 6, the Supreme Court will also announce whether to grant a case, Wurie v. U.S.. involving police searching a suspect’s call logs after an arrest, while another case that could come before the top court, Riley v. California, concerns a suspect’s pictures and videos. The court could hear those two cases together.

What’s your password?

In the age of encryption and passwords, law enforcement officials can obtain a warrant for a hard drive, but they may not be able to access the material on it. So can police compel someone to provide a password or to unlock an account or decrypt a file?

Courts have in some cases ruled that individuals can refuse to provide a password under their Fifth Amendment right not to incriminate themselves. In 2012, the 11th Circuit Court of Appeals said that a suspect could essentially plead the Fifth to avoid providing a password to police, because providing the password would be the same as testifying that the material on the hard drives belonged to him.

In some cases, however, police get around that issue by showing they can prove in other ways that the individual had control and possession over the device in question, and in 2009 a U.S. district judge in Vermont ordered a suspect provide his password to decrypt files for police, which he eventually did, leading to his conviction on child porn charges.

The topic is currently before the Massachusetts Supreme Court. In that case, a lawyer was charged with mortgage fraud and police confiscated computer and devices from his home, but couldn’t get into them because of his encryption. The government alleges there is evidence of his crime on the computers, but the defense argues there is no proof as to what the computers were used for, only that the lawyer had bought them.

Fakhoury said resolution of the issue is becoming even more important as device-locking technologies advance.

“We’re getting new permutations of this issue because the iPhone came out, what, two months ago, and everyone’s using fingerprints to lock their phone,” he said. “The new technology is going to be unlocking the phone with your eyes, or who knows what. And again the courts are moving slow on this.”